A federal bankruptcy court judge has held that Washington Mutual, Inc. (WMI), a parent holding company that owned bank subsidiaries conducting business in Oregon, did not have nexus in Oregon by virtue of its ownership of the banks, the ownership of intangibles used by the banks in Oregon for no fee and the receipt of dividends from the banks. In re Washington Mutual, Inc., No. 08-12229 (Bankr. D. Del. Dec. 19, 2012).

Under Oregon law, because WMI and its subsidiaries filed a consolidated federal income tax return, and some of the subsidiaries conducted business in Oregon, they were required to file Oregon consolidated income tax returns. On September 25, 2008, the Office of Thrift Supervision seized the bank subsidiaries, and their assets were sold to JPMorgan Chase. The day after, WMI filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Thereafter, Oregon asserted that WMI and its subsidiaries owed additional corporate excise taxes for the period 2002 through 2006. The Oregon Department of Revenue filed a proof of claim in WMI’s Chapter 11 case seeking payment of approximately $30 million.

WMI objected to the claim on the basis that Oregon sought payment for excise taxes owed (if at all) by the seized subsidiaries, not WMI. Oregon acknowledged that the taxes it sought to collect were incurred by the subsidiaries rather than WMI, but Oregon still responded that WMI was jointly and severally liable for the excise tax obligation of the subsidiaries under Oregon law. WMI argued that Oregon lacked nexus and, therefore, WMI owed no tax. The judge sustained the objection, finding that neither the Due Process Clause nor the Commerce Clause of the U.S. Constitution was satisfied.

Oregon made several assertions with which the judge disagreed. First, Oregon asserted that because the Oregon return was filed in the name of WMI, WMI admitted to having done business in Oregon. WMI successfully argued that inclusion in a consolidated return is neither an admission of taxability nor inconsistent with Oregon's own interpretation of its statutes – the inclusion of a company in a unitary return does not mean that the state is taxing such company.

Under the Due Process Clause, WMI argued that it did not purposely avail itself of the benefits of the state. Its primary business offices were located in Seattle, and it did not operate any offices or own any property in Oregon. It directed no business activity toward Oregon and had no sales or other operating revenue from Oregon sources. It was a mere holding company with no business operations other than at its Seattle offices. Oregon, on the other hand, argued that WMI was doing business in Oregon "through its banking subsidiaries." The court disagreed with the state. Furthermore, although Oregon asserted that the ownership of intellectual property (e.g., trademarks) used in Oregon constituted a profit-seeking activity, the court rejected this argument, noting that WMI received no benefit because it did not earn any income from the use.

Under the Commerce Clause, the court rejected WMI’s claim that a physical presence was required, but it also rejected "the state courts' significant economic presence test," instead concluding that the constitutionality of the Oregon tax was subject to the "substantial nexus" test articulated in Complete Auto Transit, Inc. v. Brady,430 U.S. 274 (1977). Under the facts, the court concluded that Oregon was "not seeking to tax the proceeds of any sale in Oregon of an intangible owned by WMI or the proceeds of the licensing of any intellectual property owned by WMI that was used in connection with business activity in Oregon." Rather, Oregon was attempting to "hold WMI jointly and severally liable for corporate excise taxes incurred by the banking operations of its subsidiaries in Oregon." The court noted that the majority of courts upholding nexus on the basis of intangible property in a state involved cases where the intangible property itself generated income for the taxpayer, which was not the case here.

The court concluded, "Under Oregon's analysis, any shareholder who receives thousands (or less) in dividends from a subsidiary would be responsible for potentially millions in taxes incurred by that subsidiary. Such a result would have devastating consequences to shareholders and to the United State's (sic) economy where investments play a crucial role. The effect of finding a parent holding company liable for the corporate excise tax of its subsidiaries merely because it allowed the free use of its trademarks and received a dividend would deeply burden interstate commerce." For these reasons, the court concluded that WMI did not have substantial nexus in Oregon as required by the Commerce Clause.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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